Plaintiff-appellant Veronica Albert-Roberts appeals from a judgment of the District Court granting summary judgment and dismissing her complaint in its entirety. She brought claims of employment discrimination under 42 U.S.C. § 1981 and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq.
We review an order granting summary judgment de novo, "resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought." Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted); see also Fed. R. Civ. P. 56.
To state a claim for a hostile work environment under section 1981,
Albert-Roberts's allegations consist of several incidents involving defendant McFadden (a co-worker), the most severe of which is a single use by McFadden of the word "nigger" to plaintiff's husband in September 2009. (Albert-Roberts was not present for the incident.) The others involve occasionally moving cleaning supplies to make it difficult for plaintiff to do her job and implying that plaintiff was stealing cleaning supplies. In considering a motion for summary judgment, the district court properly required Albert-Roberts to adduce admissible evidence showing that her workplace was so "permeated with discriminatory intimidation, ridicule, and insult . . . [as] to alter the conditions of [her] employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted). Absent such a showing, it correctly concluded that plaintiff had not made out a prima facie case of a hostile work environment, because her allegations do not rise to the level of frequency or severity necessary to establish such a claim.
Relying on our unpublished summary order in La Grande v. DeCrescente Distributing Co., 370 F. App'x 206, 210 (2d Cir. 2010), plaintiff argues that the single use of the word "nigger" is so severe as to make out a prima facie case and survive summary judgment. Although ordinarily a race-based hostile work environment claim must involve "more than a few isolated incidents of racial enmity," Williams v. Cnty. of Westchester, 171 F.3d 98, 100 (2d Cir. 1999) (internal quotation marks omitted), "a hostile work environment can also be established through evidence of a single incident of harassment that is extraordinarily severe," Fincher, 604 F.3d at 724 (internal quotation marks omitted). That is not the case here. In La Grande, we found that allegations of four instances of a company manager calling the plaintiff a "nigger," coupled with threats of physical violence and other racial slurs, were sufficient to survive a motion to dismiss. 370 F. App'x at 210-11. Albert-Roberts's allegations do not rise to that level and, even viewing all facts in the light most favorable to her, cannot sustain a hostile work environment claim. There may well exist circumstances where a single use of the word "nigger" would rise to the level of a hostile work environment, but on the facts present here, this is not such a case. The District Court was correct to grant summary judgment in defendants' favor.
We analyze § 1981 retaliation claims under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Fincher, 604 F.3d at 720.
Albert-Roberts complained to her supervisor, defendant Drucker, of McFadden's use of the word "nigger" in late September 2009. She then filed an EEOC complaint, signed October 19, 2009. She was terminated on October 20, 2009.
The District Court was correct to dismiss plaintiff `s retaliation claims, because her arguments of pretext are belied by the record. Drucker testified at his deposition that he had decided to "outsource" the cleaning "months before," and produced proposals from different outsourcing companies. Although he had initially anticipated hiring a new cleaning service beginning in January 2010, he chose to outsource earlier after Albert-Roberts was in a car accident on October 19, 2009, and was unable to work. Drucker outsourced the cleaning staff—and terminated plaintiff—the next day. Albert-Roberts has offered nothing aside from her own conclusory affidavit to rebut this testimony. In fact, in her EEOC complaint, she acknowledged the planned outsourcing: "[I]t has been shown that the cleaning crew will be replace[d] with an outsource company. The potential bidders came for a visit two times."
Having reviewed the record, we agree with the District Court that Albert-Roberts has not rebutted defendants' legitimate, nondiscriminatory reason for her termination.
We have reviewed the record and the parties' arguments on appeal. For the reasons set out above, we